Judge: Steven A. Ellis, Case: 21STCV12131, Date: 2025-01-28 Tentative Ruling

Case Number: 21STCV12131    Hearing Date: January 28, 2025    Dept: 29

Plaintiff’s Motion to Compel Nonparty Witness Dr. Luke Macyszyn to Comply With Deposition Subpoena

Tentative

The motion is denied without prejudice on procedural grounds.

Background

This case arises out of a motor vehicle accident on April 3, 2019, at or near the intersection of Wilshire Boulevard and Granville Avenue in Los Angeles. 

On March 30, 2021, Danielle Garcia Goldsmith (“Plaintiff”) filed a complaint against Postmates, LLC (“Postmates”), Igor Scoralick Gesualdi (“Gesualdi”), Lucia Scoralick (“Scoralick”), and Does 1 through 25.  On September 24, 2021, Gesualdi and Scoralick filed their answer.  On September 27, 2021, Postmates filed its answer.

On March 14, 2022, the Court, at the request of Goldsmith, dismissed Scoralick without prejudice.

On or about October 9, 2024, Plaintiff issued a Deposition Subpoena for the Production of Business Records to nonparty Dr. Luke Macyszyn.  (Ahn Decl., Exh. 1.)  The subpoena was served on October 24, 2024.  (Id., Exh. 2.)

On November 19, 2024, a representative of Dr. Macyszyn’s office executed a declaration that no records responsive to the subpoena exist. (Id., Exh. 4.)

On November 20, 2024, counsel for Defendants Postmates and Gesualdi (“Defendants”) counsel sent correspondence to Plaintiff’s counsel objecting to the subpoena on various grounds. (Id., Exh. 5.)

On December 20, 2024, Plaintiff filed this motion to compel Dr. Macyszyn to comply with the deposition subpoena. On January 14, Defendants filed an opposition, and on January 21 Plaintiff filed a reply.

Legal Standard

“Any party may obtain discovery … by taking in California the oral deposition of any person, including any party to the action.”  (Code Civ. Proc., § 2025.010.)  The process by which a party may obtain discovery from a person who is not a party to the action is through a deposition subpoena.  (Code Civ. Proc., § 2020.010, subd. (b).) 

“A deposition subpoena may command any of the following: (a) Only the attendance and testimony of the deponent …. (b) Only the production of business records for copying …. (c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.” (Code Civ. Proc., § 2020.020.)

“If a deponent fails … to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that … production.”  (Code Civ. Proc., § 2025.480, subd. (a).)  “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Id., subd. (b).)

“If the court determines that the … production sought is subject to discovery, it shall order that … the production be made on the resumption of the deposition.  (Id., subd. (i).)

“[T]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Id., subd. (j).)  

In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines “[m]isuses of the discovery process” to include “[f]ailing to respond to or to submit to an authorized method of discovery.”  Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  (Id., § 2023.030, subd. (a).)

Except as specifically modified by the Civil Discovery Act, the provisions of Code of Civil Procedure sections 1985 through 1997 apply to deposition subpoenas.  (Code Civ. Proc., § 2020.030.) 

Code of Civil Procedure section 1987.1, subdivision (a), provides:

“If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

Code of Civil Procedure section 1987.2, subdivision (a), states, in relevant part, that in connection with an order directing compliance with a subpoena, quashing it, or modifying it, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification.”

Discussion

Plaintiff served this motion seeking to compel a nonparty deponent to produce documents on the nonparty (Dr. Luke Macyszyn) by electronic means.  California Rules of Court, rule 3.1346, however, provides:

“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”    

No evidence has been presented that Dr. Macyszyn agreed to accept service by electronic means.

Accordingly, the motion is denied without prejudice on procedural grounds.

Conclusion

The Court DENIES WITHOUT PREJUDICE Plaintiff’s motion to compel nonparty witness Dr. Luke Macyszyn to comply with a deposition subpoena.

Moving party is ORDERED to give notice.